C-105/89
ECLI:EU:C:1990:335
- Súd
- Súdny dvor Európskej únie
- IČS
- 61989CC0105
- Zdroj
- eur-lex.europa.eu ↗
OPINION OF MR MISCHO —CASE C-105/89
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 2 O c t o b e r 1990 *
Mr President, 5. His application was refused by Inasti on Members of the Court, the grounds of his Nigerian nationality and his residence in Zaire.
1. The questions submitted by the Tribunal de travail, Brussels, concern proceedings brought by Mr Ibrahim Buhari against the 6. The court making the reference informs Institut national d'assurances sociales pour us that it is undisputed that Mr Buhari is travailleurs independents (National Social entitled to a retirement pension in respect of Insurance Institute for Self-employed his activity in the former Belgian Congo for Persons, hereinafter referred to as 'Inasti') the period from 1 January 1938 to 30 June concerning his entitlement to a self- 1956. As regards the period from 1 July employed person's retirement pension by 1956 to 30 June 1960, the Tribunal de virtue of his compulsory affiliation to a travail ordered resumption of the Belgian social security scheme from 1938 to proceedings to enable the applicant to 1960. produce the evidence necessary to secure recognition of that period for the grant of a pension.
2. Born in Nigeria in 1914, Mr Buhari had British nationality until that country became independent in 1960, 13 years before the United Kingdom's accession to the EEC. 7. As far as actual payment of the pension is Since then Mr Buhari has possessed concerned, the Tribunal de travail adds that Nigerian nationality. under Belgian legislation
3. In 1937 he settled in the Belgian Congo, which has since then become Zaire, and (a) Mr Buhari's pension would be payable worked as a merchant there until 1986. He in Zaire or Nigeria if he were a Belgian continues to reside there, although he is or Community national; domiciled in Nigeria.
4. In 1986 Mr Buhari applied to Inasti for a (b) and, with his present nationality, his self-employed person's retirement pension in pension would be payable if he resided respect of his activity in the Belgian Congo in the Kingdom of Belgium or in until 30 June 1960, the last day before that another Member State of the territory became independent. Community.
* Original language: French.
I - 4220
BUHARI HAJI
8. It was in those circumstances that the fact that the recipient resides in the territory Tribunal de travail, Brussels, referred three of a Member State other than that in which questions to the Court for a preliminary the institution responsible for payment is ruling. situated.'
Preliminary observation It is apparent from the very wording of that provision that it is intended solely to ensure 9. A close examination of the national the payment of benefits payable to persons court's judgment shows that its questions residing in the territory of a Member State are designed solely to establish whether other than that in which the institution Community law includes a provision which responsible for payment is situated and not requires Inasti to 'liquider' a pension, that is of those residing in non-member countries. to say actually to pay a pension to which a former worker is undeniably entitled, notwithstanding the fact that the potential recipient possesses the nationality of a 11. Even if he were a national of one of the non-member country and resides in a 12 Member States of the Community, Mr non-member country. It would therefore be Buhari could not rely on that provision in possible for the Court, after finding that order to compel Inasti to pay him his that is in essence the purpose of the pension into an account with a financial questions submitted, to confine itself to establishment located in Zaire or Nigeria. A giving the ruling set forth below. fortiori, being a national of a non-member country, Mr Buhari cannot claim treatment more favourable than that which the 10. The relevant provision is the first Community legislation provides for subparagraph of Article 10(1) of Regulation Community nationals residing in a Member (EEC) No 1408/71 of the Council of 14 State. No question of discrimination can June 1971 on the application of social therefore arise. security schemes to employed persons, to self-employed persons and to members of their families moving within the Community 1 (hereinafter referred to as 12. In those circumstances, it is not even 'Regulation No 1408/71'). That article necessary to consider whether Regulation provides as follows: No 1408/71 applies to a person who had the nationality of a present Member State of the Community but lost that nationality 'Save as otherwise provided in this regu- before the accession of that State to the lation, invalidity, old-age or survivors' cash Community. benefits, pensions for accidents at work or occupational diseases and death grants acquired under the legislation of one or more Member States shall not be subject to 13. However, I should not like to go so far any reduction, modification, suspension, as to suggest that the Court should follow withdrawal or confiscation by reason of the such a course. For my part, I cannot do otherwise than consider the possible applica- 1 — This regulation was updated by Regulation (EEC) No 2001/83 (OJ 1983 L 230, p. 6) and has been amended bility of all the various provisions of since then on several occasions, most recently by Council Community law referred to by the national Regulation (EEC) No 3427/89 of 30 October 1989 (OJ 1989 L 331, p. I). court.
I-4221
OPINION OF MR MISCHO —CASE C-105/89
The first question 'This regulation shall apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of 14. The first question is as follows: one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member 'Does the payment by a Member State of a States . . . ' retirement pension (in the present case a self-employed person's pension) on account of an occupation (in the present case as a 17. As the Court pointed out in its colonist) previously pursued "in a territory judgment in Belbouab, 2 two conditions must which at the time maintained special be satisfied for that provision to apply, relations with that Member State" to a namely: person who at the time was a national of a second State (which in the meantime has become a Member State) and is now a national of a non-member country whose (i) a worker must be or have been subject territory at the time maintained special to the legislation of one or more relations with the second State (which in the Member States; meantime has become a Member State) fall within the scope of Articles 1 to 4, the first subparagraph of Article 10(1) and Articles (ii) the worker must be a national of one of 44 to 51 of Council Regulation (EEC) No the Member States. 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the (a) The concept of 'legislation of a Member Community and subsequently Articles 35 to State' 59 of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation No 18. It is apparent from the national court's 1408/71?' judgment that Mr Buhari is entitled to a Belgian self-employed person's retirement pension, by virtue inter alia of Royal Decree No 72 of 10 November 1967 on retirement 15. Like the Commission, I consider that it and survivors' pensions for self-employed is first necessary to decide whether a persons. situation such as that of Mr Buhari falls within the scope of Regulation No 1408/71. 19. I share the Commission's view that 'there is no doubt that this Belgian law meets the definition of the term "legis- 1. The scope of the regulation lation" contained in Article l(j) of Regu- lation N o 1408/71, namely the statutes, regulations and other provisions and all other implementing measures relating to the 16. Reference must first be made to Article branches and schemes of social security 2(1) of the regulation, which is worded as follows : 2 — Case 10/78 [1978] ECR 915.
I - 4222
BUHARI HAJI
covered by Anicie 4(1) and (2). Anicie 4, 'As the Court stated in its judgment of 23 which concerns the matters covered by the October 1986 in Case 300/84 Van regulation, expressly refers, in subpara- Roosmalen [1986] ECR 3097, the essential graphs (c) and (d), to the branches of social criterion for determining the scope of the security to which the Belgian legislation at term "legislation" is not the place in which issue relates'. The legislation in question is the occupation was pursued but the link likewise not cited amongst the special which exists between the worker, regardless of schemes which are excluded, listed in the place in which he pursued or is pursuing Annex II, since under the heading 'Belgium' his occupation, and the social security in that annex the words 'Does not apply' scheme in a Member State under which he appear. has completed periods of insurance.
20. Finally, it is inappropriate to raise the Since the decisive criterion is the affiliation objection, which has in the past been raised of an insured person to a social security several times before the Court, that legis- scheme of a Member State, the fact that the lation that relates exclusively to periods of insurance periods completed under that activity completed outside the European scheme were completed in non-member territory of the Member States cannot be countries is unimportant' (paragraphs 24 regarded as 'legislation of a Member State' and 25). within the meaning of Article 2.
It must therefore be concluded that Mr Buhari was subject to the legislation of a 21. In its judgment in Case 87/76 Bozzone Member State. [1977] ECR 687, which concerned insurance periods completed by a worker of Italian nationality in the former Belgian Congo, the Court held that Article 10 of (b) The status of 'national of one of the Regulation No 1408/71, and therefore that Member States' regulation as a whole,
23. Article 2(1) of Regulation No 1408/71 'applies to the situation of a recipient of refers secondly to workers 'who are benefits guaranteed by the legislation of a nationals of one of the Member States'. A Member State relating to employment literal interpretation of that expression exclusively in a territory which at the time might give the impression that that status maintained special relations with a Member must in any event exist when the person State . . . ' (paragraph 21). concerned seeks to derive rights from Regu- lation No 1408/71. However, at the present time Mr Buhari is a national of a non-member country, Nigeria. 22. In its judgment in Joined Cases 82 and 103/86 Laborem and Sabato [1987] ECR 3401, which also related to insurance periods completed by Italian nationals in the 24. In the operative part of its judgment in Belgian Congo and Zaire, the Court stated Belbouab, supra, the Court declared, that however, that
I - 4223
OPINION OF MR MISCHO —CASE C-105/89
'Article 2(1) and Article 94(2) of Regulation that the person concerned, a British subject No 1408/71, read in conjunction with one when he completed the periods in question, another, are to be interpreted as guaran- is covered by the regulations'. At the teeing that all insurance periods and all hearing, however, the Commission periods of employment or residence vacillated considerably on this point. completed under the legislation of a Member State before the entry into force of that regulation shall be taken into consideration for the purpose of deter- mining entitlement to benefits in accordance 27. For my part, although convinced that it with its provisions, subject to the condition- would be unequitable for Mr Buhari to be that the migrant worker was a national of one deprived of his pension, I do not believe of the Member States when the periods were that he was a migrant worker who was a completed'. 3 national of one of the Member States when he completed the insurance periods in question. In my opinion, his situation cannot be assimilated to that of Mr Belbouab. 25. It is true that Article 94 concerns only employed persons, but Regulation No 1408/71 includes a similar provision which covers the situation of self-employed persons, namely Article 95(2), whose 28. Let us briefly recall the facts which led present version, which has been applicable to the judgment in Belbouab, and compare since 1 January 1986, is as follows: them with those of the present case. Mr Belbouab was born in 1924 in Algeria, which was at that time a French territory. He worked in French mines from 29 March 1947 to 17 November 1950 and then from 6 'All insurance periods and, where appro- June 1951 to 4 October 1960. In 1960 he priate, all periods of employment, of self- established his residence in the Federal employment or of residence completed Republic of Germany to avoid possible under the legislation of a Member State political difficulties. He worked there from before 1 July 1982 or before the date of 26 May 1961 as a miner. In 1974, he implementation of this regulation in the applied for the pension granted by German territory of that Member State shall be legislation to miners who have attained the taken into consideration for the determi- age of 50. Mr Belbouab possessed French nation of rights acquired under this regu- nationality until Algeria became inde- lation'. 4 pendent on 1 July 1962, He therefore possessed the nationality of a Member State after its entry into the Community, which in that case coincided with the establishment 26. In its written observations, the of the Community, and after he emigrated Commission concluded from all those to Germany. factors that 'it may therefore be considered
3 — Emphasis added. 4 — Council Regulation (EEC) No 1305/89 of 11 May 1989 amending Regulation (EEC) No 1408/71 on the 29. Mr Buhari, on the other hand, lost his application of secial security schemes to employed persons, to self-employed persons and to members of their families British nationality in 1960, that is to say 13 moving within the Community and Regulations (EEC) No 574/72 laying down the procedure for implementing Regu- years before the United Kingdom acceded lation (EEC) No 1408/71 (OJ 1989 L 131, p. 1). to the Community.
I - 4224
BUHARI HAJI
30. I consider therefore that the principle of 32. Mr Buhari, on the other hand, was, as legal certainty, on which the Court mainly far as we know, subject to the legislation of relied in Belbouab, precludes the attribution only one Member State, Belgium. The fact to Mr Buhari of the status of 'national of that he moved from Nigeria to the Belgian one of the Member States'. In Belbouab, the Congo had no practical impact on the Court declared that the second condition extent of his pension rights. Regulation No imposed by Article 2(1) must be interpreted 1408/71 did not start to play a role in Mr so as to Buhari's life until the problem arose of the 'exportation' of his pension from Belgium to Zaire.
'satisfy the principle of legal certainty, one of the requirements of which is that any 33. In circumstances like those of the main factual situation should normally, in the proceedings, it would hardly be possible, absence of any contrary provision, be therefore, to rely, in support of a broad examined in the light of the legal rules interpretation of the term 'national of one existing at the time when the situation of the Member States', on the fact that obtained'.
'the provisions of Regulation No 1408/71, However, at no time during the period adopted to implement Article 51 of the when Mr Buhari worked and paid his Treaty, must be interpreted in the light of contributions under Belgian legislation was the objective of that article, which is to the United Kingdom a member of the contribute to the establishment of the Community. Mr Buhari thus never had the greatest possible freedom of movement for status of national of one of the Member migrant workers' States, merely that of a national of a non-member country.
or that
31. The second observation called for is as follows. The judgment in Belbouab was 'the aim of Articles 48 and 51 would not be delivered in the particular context of the attained if, as a consequence of their aggregation of insurance periods completed exercise of the right to freedom of in two different Member States. movement, workers were to lose the Accordingly, it was logical to take account advantages in the field of social security of the nationality of the person concerned guaranteed to them by the laws of a single in the period when he completed insurance Member State'. 5 periods in France. At that time, Mr Belbouab was a French national and therefore an EEC national, whose situation was already covered by Community law. As The issue in the present case is not really regards the periods prior to the entry into that of freedom of movement for migrant force of Regulation No 1408/71, in workers. It was not the Treaty that enabled particular those which antedated the estab- lishment of the EEC, he was entitled to rely 5 — See in particular lhe judgment in Case 43/86 Bestuur van on Article 94 of that regulation. de Sociale Verzekeringsbank v De Rijke [1987] ECR 3611.
I - 4225
OPINION OF MR MISCHO —CASE C-I05/89
Mr B u h a r ito move from Nigeria to the 37. Since, to the best of my knowledge, Belgian Congo. Moreover, neither before there was no such provision, that category I960, when he was a British citizen, nor of person is not among those covered by subsequently, when he had become a citizen Regulation No 1408/71. Accordingly, it is of Nigeria, did he have any right to settle in unnecessary to examine the applicability of the territory of the Community (the Lomé the other articles of Regulation No 1408/71 Convention contains no provision to that cited by the national court. However, in effect). case the Court does not share my interpre- tation of Article 2(1), I should nevertheless like to consider those other articles.
34. Finally, Mr Buhari's situation is not, in my opinion, comparable to that of a British national who completed insurance periods in the Belgian Congo at the same time as 38. However, my observations concerning Mr Buhari and retained his British Article 3 are more suited to the context of nationality. Such a person would have the second question which, like that article, become a Community national in 1973, just is concerned with the principle of as the citizens of the founder States, non-discrimination. As regards Article 10, including Mr Belbouab, did in 1958. In on which I expressed my views at the particular, he would have been entitled to beginning of this Opinion, I must revert to rely on the transitional provisions of Articles it briefly in the context of Article 51 of the 94 or 95 of Regulation No 1408/71, which Treaty. In relation to the first question, I allowed account to be taken of insurance need only say a few words concerning periods completed prior to accession, for Articles 44 to 51 of Regulation No 1408/71 the purpose of aggregation of the periods and Articles 35 to 59 of Council Regulation completed in the Belgian Congo and those No 574/72 laying down the procedure for completed subsequently in the United implementing Regulation No 1408/71. 6 Kingdom or in another Member State.
35. Mr Buhari, on the other hand, never 2. The possible applicability of Chapter 3 of changed from the status of 'British citizen' Regulation No 1408/71 and of the corre- to that of 'British citizen and Community sponding chapter of Regulation No 574/72 national'. If he had subsequently gone to work in the United Kingdom or Belgium he would not, because of his Nigerian nationality, have qualified for aggregation of his insurance periods under Community 39. Articles 44 to 51 make up Chapter 3 of law. Regulation No 1408/71, entitled 'Old age and death (pensions)'.
36. For the rights acquired by people in circumstances like those of Mr Buhari to have been safeguarded by Community law, 40. Article 44(1) provides that a special provision for their benefit would have had to be included in the Act of 6 — OJ, English Special Edition 1972 (I), p. 159, codified by Accession of the United Kingdom. Council Regulation No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 86).
I - 4226
BUHARI HAJI
'the rights to benefits of an employed or 'Does the refusal by a Member State to pay self-employed person who has been subject a social security benefit (in the present case, to the legislation of two or more Member a self-employed person's retirement pension States, or of his survivors, shall be on account of a previous occupation as a determined in accordance with the colonist on the territory of its former provisions of this chapter. colony) to a person residing "in a territory which at the time maintained special relations with that Member State" and domiciled in another territory — which also It is thus clear that Articles 44 to 51 of maintained at the time special relations with Regulation No 1408/71 are not relevant to a second State (which in the meantime has the present case, since Mr Buhari was become a Member State) and which has subject to the legislation of only one become a non-member country of which he Member State, Belgium. now has the nationality — on the sole ground of his present nationality and residence constitute "discrimination on grounds of nationality" within the meaning 41. That applies also to Articles 35 to 59 of of the first paragraph of Article 7, Article Regulation No 574/72 which lay down the 48(2) and (3)(c) and (d), and Article 50(b) procedure for implementing the abovemen- of the Treaty, whether or not it is direct or tioned provisions of Regulation No indirect or based on nationality by 1408/71. application of formally neutral criteria which nevertheless lead to the same result, namely the putting of non-nationals at a disadvantage owing to the existence of a 42. In view of the foregoing, I propose that disproportionate obstacle?' the Court give the following answer to the first question:
'The situation of a recipient of social 44. The national court thus wishes to know, benefits guaranteed by the legislation of a essentially, whether or not the refusal to pay Member State, in respect of an activity as a a pension which is due, under the legislation self-employed person pursued in a territory of a Member State, to a person having the which at the time maintained special nationality of a non-member country and relations with a Member State, does not fall residing in another non-member country within the scope of Regulation No 1408/71 constitutes discrimination prohibited by the or Regulation No 574/72 where, during the EEC Treaty. period in question, the recipient was a national of a State which was not yet a member of the Community.'
45. It should be noted in the first place that The second question the prohibition of all discrimination on grounds of nationality laid down in Article 7 of the Treaty is intended to protect only people having the nationality of a Member 43. The second question submitted by the State of the Community, not nationals of Tribunal de travail, Brussels, is as follows: other countries.
I - 4227
OPINION OF MR MISCHO —CASE C-105/89
46. Furthermore, as the Court stated in its territory of another Member State shall be judgment in Case 1/78 Kenny [19781 abolished by progressive stages in the course ECR 1489, of the transitional period'.
'within the scope of application of Regu- lation No 1408/71 the first paragraph of 50. Mr Buhari has not in the past sought to Article 7 of the Treaty [has been] establish himself as a self-employed person implemented by Article 48 of the Treaty and in a Member State and does not wish to do Article 3(1) of that regulation so now, so that it is not even necessary to (paragraph 12, p. 1497). refer to the condition of nationality mentioned in that article.
47. According to Article 48: 51. Finally, Article 3 of Regulation No 1408/71 is worded as follows: '(1) Freedom of movement for workers shall be secured within the Community by the end of the transitional period at the latest. 'Subject to the special provisions of this regulation, persons residing in the territory of one of the Member States to whom this regulation applies shall be subject to the (2) Such freedom of movement shall entail same obligations and enjoy the same the abolition of any discrimination benefits under the legislation of any based on nationality between workers of Member State as the nationals of that State.' the Member States.'
However, Mr Buhari does not at present 48. That article is thus concerned only with reside in the territory of a Member State. ensuring free movement within the Consequently, that provision does not apply Community. That issue has not arisen and to him. does not arise in the present case. Moreover, Mr Buhari has never been and is not now an employed person, the only category of person covered by Article 48. 52. The national court also refers to Article 48(3)(c) and (d). However, since Mr Buhari has never been an employed person, those 49. As regards self-employed persons, such provisions cannot concern him. Moreover, as merchants (Mr Buhari's occupation), the the right to remain in the territory of a principle of non-discrimination laid down in Member State (paragraph (d)) can operate Article 7 was implemented by Article 52 of only in favour of a person who previously the Treaty, which provides that: resided lawfully in a Member State. Furthermore, as regards the right to stay in a Member State (paragraph (c)), M r Buhari made it clear at the hearing that even if he 'restrictions on the freedom of establishment had that right, he would not establish his of nationals of a Member State in the residence in the territory of the Community
I - 4228
BUHARl HAJI
since he could not accustom himself to 56. I therefore propose the following living conditions in Europe. answer to the second question:
53. Finally, the Belgian court refers to 'Neither the principle of non-discrimination Article 50(b) of the Treaty. This must be a laid down in the first paragraph of Article 7 clerical error, since that article contains only and Articles 48 and 52 of the Treaty and one sentence, which relates to exchanges of reiterated in Anicie 3(1) of Regulation No young workers. 1408/71, nor the waiver of residence clauses provided for in Article 51(b) of the Treaty and the first subparagraph of Article 10(2) 54. On the other hand, Article 51(b) of Regulation No 1408/71 is applicable provides that the Council is to establish a where the recipient of the benefit does not system facilitating reside in the territory of a Member State.'
'payment of benefits to persons resident in The third question the territories of the Member States'.
The Council has complied with that 57. By its third question, the national court direction by including Article 10(1) in asks: Regulation No 1408/71. The Commission had proposed to the Council a waiver of the residence clause for recipients residing in a non-member country as well. The Council 'Are the wording and spirit of the did not accept that proposal but merely abovementioned Community provisions prescribed that the benefits payable under compatible with the Belgian rules at present the various social security schemes in force in Article 144(2) of the Royal Decree of 22 December 1967 (regulating retirement and survivors' pensions for self- employed persons), as amended by Article 'shall not be subject to any reduction, with- 24 of the Royal Decree of 17 July 1972 and drawal or confiscation by reason of the fact Article 64(1) of the Royal Decree of 24 that the recipient resides in the territory of a September 1984, or upon their restrictive Member State other than that in which the interpretation given by the defendant?' institution responsible for payment is situated'.
58. This question calls for two preliminary 55. By so doing, the Council certainly did observations. The Tribunal de travail doubt- not infringe Article 51(b) of the Treaty since lessly wished to ask whether the Belgian the latter only imposes the requirement that rules to which it refers are compatible with payment of benefits be facilitated for Community law, and not vice versa, since persons residing in the territory of the Community law takes precedence over Member States. national law.
I - 4229
OPINION OF MR MISCHO —CASE C-105/89
59. Secondly, it must be borne in mind that 62. In fact, it is apparent from the in proceedings for a preliminary ruling foregoing observations that, as Community under Article 177, the Court has no juris- law stands, it does not require the Member diction to rule on the compatibility of a States to pay social security benefits to a provision of national law with Community person residing in a non-member country. law. The Court may, however, where an incorrectly worded question is submitted to it, identify the issue of Community law in terms which enable it to give a ruling, 7 so that it can 63. Consequently, my reply to the third question is as follows:
'provide the national court with the criteria 'As Community law stands at present, it enabling it to deal with the action before it, does not preclude national legislation under in particular as regards any incompatibility which a retirement pension may not be paid of national provisions with Community to a person residing in a non-member rules'. 8 country.'
64. However, it might be considered that 60. In the present case, the national court the answer to the third question is already would like to know whether the Community embodied in the answer suggested for the law provisions must be interpreted as second question. allowing a Member State to prescribe by legislation that a retirement pension for a self-employed person is 'payable abroad only to recipients 65. Having thus, unfortunately, had to come to the conclusion that Community law is of no help to Mr Buhari, I should never- theless like to stress my conviction that a refusal to pay the pension to which Mr 'residing in the territory of a country where Buhari is entitled would run wholly counter an employed person's pension could be paid to the requirements of equity. Like the under a reciprocity agreement'. Commission, I should like to emphasize that no provision of Community law prevents the Tribunal de travail from adopting a broad interpretation of national legislation, having regard in particular to the rules of 61. Like the Commission, I consider that, in international law mentioned in the order for so far as the word 'abroad' does not refer to reference, or by applying the principle of the other Member States of the Community the protection of legitimate expectations. but only non-member countries, a provision Indeed, Mr Buhari would be legitimately of that kind is not incompatible with entitled to expect that the contributions paid Community law. by him would give rise to the payment of a pension, otherwise he would, if possible, 7 — Judgment in Case 823/79 Carciati [1980] ECR 2773. have subscribed to a private old-age 8 — Judgment in Case 38/77 ENKA v Inspecteur der Invoer- rechten en Accujnzen [1977] ECR 2203. insurance scheme.
I - 4230
BUHARI HAJI
66. It is also surprising to find that in the But it is difficult to see why all people who, Bozzone case cited earlier the Belgian regardless of nationality, worked and paid Overseas Social Security Office wished to contributions in the former Belgian Congo withhold payment of the plaintiff's pension should not be able to obtain payment of in Italy, although it would have been willing their pensions in Zaire, in so far as the to pay it if he had continued to reside in general principle that acquired rights should Zaire. It is true that in that case another be respected and the principle of the administration and another law were protection of legitimate expectations involved; moreover, the person concerned manifestly require such payment. possessed the nationality of a Member State.
Conclusion
67. The answers which I suggest be given to the questions submitted by the Tribunal de travail, Brussels, may be summarized as follows:
'(1) The situation of a person entitled to social security benefits guaranteed by the legislation of a Member State, in respect of an activity as a self-employed person pursued in a territory which at the time maintained special relations with a Member State, is not covered by Regulations Nos 1408/71 and 574/72 where, during the period in question, the person concerned was a national of a State which was not yet a member of the Community.
(2) Neither the principle of non-discrimination laid down in the first paragraph of Article 7 and Articles 48 and 52 of the Treaty and reiterated in Article 3(1) of Regulation No 1408/71, nor the waiver of residence clauses provided for in Article 51(b) of the Treaty and the first subparagraph of Article 10(2) of Regulation No 1408/71 is applicable where the person entitled to the benefit does not reside in the territory of a Member State.
(3) As Community law stands at present, it does not preclude national legislation under which a retirement pension may not be paid to a person residing in a non-member country.'
I-4231